Tassan And Others vs State Of U.P.
2019 Latest Caselaw 4048 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

                                                                    A.F.R.
 
                                                                    Reserved on 02.01.2019
 
                                                                    
 

 

 
Court No. - 4
 
Case :- CRIMINAL APPEAL No. - 2667 of 1986
 
Appellant :- Tassan And Others
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Kamal Krishna,Pradeep Kumar Rai
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Bala Krishna Narayana,J.

Hon'ble Ghandikota Sri Devi,J.

(Dictated by Hon'ble Ghandikota Sri Devi,J.

(1) As per report of the Chief Judicial Magistrate, Fatehpur dated 14.09.2018 appellant no.2 Wassan son of Wasiq Husain has died during pendency of this appeal and hence this appeal is dismissed as abated qua appellant no.2 Wassan son of Wasiq Husain.

(2) In the present appeal, in all five appellants namely Tassan (A-1), Wassan (A-2), Abbas (A-3), Udai Bhan (A-4) and Jhalla Yadav (A-5) have challenged the judgment and their conviction and order of sentence dated 30.08.1986 passed by the learned Additional Sessions Judge, Fatehpur in S.T. No. 20 of 1985 (State Versus Tassan and others), pertaining to P.S. Kishanpur, District-Fatehpur. By the impugned judgment and order, the learned Trial Judge, Fatehpur had convicted the appellants namely Wassan (A-2), Abbas (A-3), Udai Bhan (A-4) and Jalla Yadav (A-5) under section 148 I.P.C. and sentenced them to undergo rigorous imprisonment for a period of one year and fine of Rs. 1000/- each, in default of payment of fine, they were further directed to undergo rigorous imprisonment for a period of three months each. The appellant Wassan (now deceased) was further sentenced to undergo rigorous imprisonment for life for the offence under section 302 I.P.C. The appellants Tassan, Abbas, Udai Bhan and Jhalla Yadav were further convicted under Section 302 I.P.C. read with section 149 I.P.C. and were sentenced to undergo imprisonment for life. However, appellant Tassan was not held guilty of the offence under Section 404 I.P.C. and he was acquitted of the same. All the sentences were directed to run concurrently.

(3) The facts of the prosecution case as mentioned in the written report, may be summarized as under:-

(4) There had been a long drawn enmity between the deceased Bramha Dutt @ Kallu and accused-appellants, all the residents of village Silmi within the circle of P.S. Kishanpur, District-Fatehpur. Various criminal cases were pending and faught between the parties earlier, including the cases under Sections 323, 324, 325, 395, 397 I.P.C. and also the proceeding under Sections 107/117 Cr. P.C. In this hostile backdrop, it was alleged that the then District Magistrate-Fatehpur vide order dated 19.09.1984 had suspended the licence of Brahma Dutt @ Kallu and accordingly issued show cause notice, calling upon him to file his written statement if any, within a period of 15 days as to why his licence of gun would not be cancelled. In the written report, it was alleged that for doing pairivi of the said cancellation proceeding, Brahma Dutt @ Kallu on 26.10.1984 along with Vishwanath, Jagdish and Rameshwar Prasad was going to the office of the District Magistrate, Fatehpur from their village Silmi. Before going to District-Fatehpur, they had planned to go to village Nihalpur to consult the person whose licence of gun had already been cancelled by the District Magistrate. When they could not meet the said person, Brahma Dutt @ Kallu and his other three associates came out from village Nihalpur and at about 9.30 A.M. when they reached near the bridge of the canal they saw that all the accused-appellants including Assan (already died during the trial) on the eastern side of Khaga Kishanpur road were sitting under a mango tree by the side of the road. The deceased Assan was having D.B.B.L. gun, appellants Abbas, Jhalla and Wassan were armed with S.B.B.L. guns, Udai Bhan was having Tamancha and appellant Tassan was armed with Lathi. When Brahma Dutt @ Kallu along with his associates reached near about 7-8 paces before the bridge of the canal and started waiting for the bus to the Fatehpur city, then the deceased appellant Wassan fired with his gun which hit Brahma Dutt @ Kallu and as a result, he fell down. Then the appellants Tassan and Jhalla Yadav exhorted stating that "Maaro Saalon Ko Bachkar Bhag na pave", to which all the accused-appellants started firing recklessly with their guns and ran towards Brahma Dutt @ Kallu and his associates. His associates Vishwanath, Jagdish and Rameshwar Prasad ran hither and thither due to fear, however, they escaped unhurt. All the three ran towards south of the bridge and towards west of the road and took shelter in the ditches. Bramha Dutta @ Kallu died on the spot immediately after receiving the gun shot injuries. The witnesses saw that the accused-appellant Wassan snatched the licensed gun along with belt of cartridges and also the gun license from the possession of dead body of Brahma Dutt @ Kallu. Rameshwar Prasad had also fired in defence at the accused-appellants with his S.B.B.L. gun and accused-appellants ran away from the scene of occurrence towards north, leaving the road towards east. After the departure of the accused-appellants, the witnesses Vishwanath, Jagdish and Rameshwar Prasad ran towards south and when they reached at the Culvert of the pulia of village Sheopur, they saw that Ramanuj, the father of the deceased Bramha Dutt @ Kallu and his son-in-law Sheo Bhushan were coming from the opposite direction. The witnesses narrated the entire incident to Ramanuj, then Ramanuj got the written report prepared by his son-in-law Sheo Bhushan, which was taken to P.S. Kishanpur, where it was lodged at about 10.34 A.M.

(5) Basing on the said written report, a check report was prepared at P.S. Kishanpur by the constable clerk and the relevant entries were made in the General Diary. A Case Crime No.134 of 1984 under section 396 I.P.C. was registered against the accused-appellants. Sri V.P. Upadhyaya S.I. of the police, P.S. Kishanpur took up the investigation of the case into his hands and he reached the place of occurrence at about 11.30 A.M. on the same day. He inspected the place of occurrence and prepared the site plan and also recorded the statements of the witnesses. He had conducted inquest over the dead body and prepared inquest report. In order to dispatch the dead body for post-mortem examination, he further prepared the necessary papers like challan lash, photo lash, letter to C.M.O., letter to R.I., so also the sample seal of the dead body. The Investigating Officer collected the samples of plain and blood stained earth from the scene of occurrence in two separate tins and prepared the recovery memo to this extent. Thereafter, the dead body of Brahma Dutt @ Kallu was sent to District Hospital, Fatehpur for post-mortem examination.

(6) Dr. S.K. Singh, the then Medical Officer, District Hospital, Fatehpur conducted the post-mortem on the body of Brahma Dutt @ Kallu on 27.10.2084 at about 3.15 p.m. and prepared the post-mortem report.

(7) On the transfer of Sri V.P. Upadhaya, the first Investigating Officer, Sri Devi Lal Prajapati, the then S.H.O. of P.S. Kishanpur had taken up further investigation of the matter and after recording the statements of accused-appellants, he had submitted charge sheet against the accused in the court of Chief Judicial Magistrate, Fatehpur.

(8) Since the disclosed offences were exclusively triable by the Court of Sessions, the Chief Judicial Magistrate, Fatehpur had committed the case to the Court of Sessions for trial, wherein the Case Crime No.134 of 1984 was registered as S.T. No. 20 of 1985 and thereafter, the same was transferred to the Court of Additional Sessions, Judge, Fatehpur for trial. The then VIIth Additional Sessions Judge, Fatehpur after affording sufficient opportunity to both the accused and the prosecution and basing on the primary evidence available on record, vide his order dated 25.04.1985 had framed separate charges against all the accused-appellants to which the appellants pleaded not guilty and claimed for trial.

(9) In order to substantiate the charges levelled against the appellants, the prosecution in all, had examined as many as 7 witnesses. Ramanuj (PW-1), was the father of deceased Brahma Dutt @ Kallu who also lodged the written report in the police station, however, he was not the witness to the occurrence. Vishwanath @ Sughru (PW-2), Jagdish (PW-3) and Rameshwar Prasad (PW-4) were said to have accompanied the deceased on the date of alleged occurrence and were also said to be the eye witnesses to the occurrence. Thus, all the aforesaid four witnesses were examined from the side of prosecution as witnesses of fact. Sri Devi Lal Prajapati (PW-5) S.H.O., P.S. Kishanpur, the second Investigating Officer, Dr. S.K. Singh (PW-6), who conducted the post-mortem examination on the dead body and Sri V.P. Upadhaya (PW-7), S.I. of the police station, Kishanpur, the first Investigating Officer were examined as formal witnesses. Apart from the above, the prosecution had also relied upon the documentary evidence such as written report (Ext.Ka-1), charge sheet (Ext.Ka-2), Post-mortem report (Ext. Ka-3), Check FIR (Ext.Ka-4), Copies of the entry in G.D. Report (Ext.Ka-5), Inquest report (Ext.Ka-6), challan lash, photo lash, letter to C.M.O., letter to R.I and sample seal (Ext. Ka-7 to Ka-11), recovery memo of samples of simple and blood stained earth (Ext.Ka-12), and site plan (Ext.Ka-13).

(10) After closure of the prosecution evidence, the statement of accused-appellants were recorded under section 313 Cr. P.C. in which all the accused stated that they had been falsely implicated in this case due to enmity. Apart from this, the appellant Jhalla Yadav stated that due to some dispute between Bhola and Sughru, at the instance of Sughru (PW-2) he had been falsely implicated in this case. Accused Abbas stated that police of both the police stations Khaga and Kishanpur had been highly inimical to him since before the occurrence and accordingly he had been falsely implicated in this case. Accused Tassan stated that (PW-2) Jagdish fought the election for the post of pradhan against him in which Jagdish was defeated, due to retaliation he had been falsely implicated in this case at the instance of Jagdish. Accused Wassan stated that his brother Tassan won the election for the post of pradhan against Jagdish and that was the reason he was falsely implicated in this case. In support of the case of accused persons, they had also examined one Chandra Bhushan Singh, Arms clerk of the office of District Magistrate, Fatehpur as defence witnesses No.1 and also filed certain documents which were marked as (Ext.Kha-1 to Kha-4).

(11) As already stated in the opening paragraphs of this judgment, after hearing the arguments advanced by the learned counsel for the defence as well as prosecution, the learned trial judge believed the ocular version of the occurrence trustworthy and therefore, convicted the appellants and sentenced them accordingly, vide impugned judgment and order dated 30.08.1986 which decision has now been challenged in the instant appeal.

(12) On the aforesaid factual matrix, we have heard Sri Kamal Krishna, Senior Advocate assisted by Sri Rajesh Srivastava, learned counsel for the appellants, Sri Basharat Ali Khan, learned A.G.A.-I assisted by Sri Ramesh Kumar Pandey, learned A.G.A. for the State and have gone through the entire oral and documentary evidence available on record carefully and have given our thoughtful consideration over the same.

(13) Assailing the impugned judgment, learned senior counsel strenuously urged that it is a case of no evidence. The entire evidence on record indicates and establishes only motive to commit the crime and nothing beyond the same. None of the fact witnesses PW-2, PW-3 and PW-4, who were said to have accompanied the deceased for Fatehpur are trustworthy and reliable witnesses, nor their testimonies are convincing and inspiring confidence. There were lot of material discrepancies in the oral evidence of these witnesses, which cannot be relied upon. All the witnesses of the fact have contradicted each other on the most pivotal aspects about the incident, which shows untrustworthiness of their depositions. There is absolutely no evidence on record to show that the witnesses had accompanied the deceased on the date of alleged occurrence and the occurrence had taken place in the manner as narrated by them. No empty cartridges were recovered from the place of occurrence though the police reached the place of occurrence after two hours of the occurrence had taken place, which falsifies the entire prosecution story and the whole story had been fabricated by the police. It was further contended that the FIR is ante timed, investigation was perfunctory, all the fact witnesses were planted to give colour to the prosecution version, the medical evidence did not at all support the ocular testimony of the witnesses and the appellants had been convicted only on the basis of conjunctures and surmises. It was further submitted that the impugned judgment is against the weight of material evidence available on record. Hence, in the absence of reliable evidence that the deceased met homicidal death at the hands of the appellants, the conviction of the appellants on the version of the prosecution witnesses cannot be sustained and accordingly appeal filed by the appellants deserves to be allowed and the impugned judgment and order is liable to be set aside.

(14) Learned A.G.A. Sri Basharat Ali Khan to the contrary has submitted that the findings recorded by the learned trial judge are well reasoned and based on both oral and documentary evidence. It was further submitted that the occurrence took place in broad day light and the FIR was lodged promptly within two hours of the occurrence, all the eye witnesses have fully corroborated the prosecution version. Thus, according to the learned A.G.A., none of the grounds raised by the learned counsel for the appellants are substantiated, therefore, the charges levelled against the appellants have been established beyond any shadow of reasonable doubt and accordingly the appeal sans merit and deserves to be dismissed.

(15) Before proceeding to examine the merits of the argument advanced on behalf of the parties, we would like to place on record the facts established from medical evidence. PW-6 Dr. S.K. Singh had conducted the Post-mortem examination on the body of the deceased Brahma Dutt @ Kallu on 27.10.1984 at about 3.15 P.M. and found the following ante-mortem injuries on his person:-

(I) Gun shot wound of entry ¼'' x ¼'' x muscle deep on medial side, left arm, 4 above the elbow. Blackening and tattooing present and direction from right to left side

(II) Gun shot wound of exit ½'' x ¼'' x muscle deep on lateral side of left arm 4'' above the elbow joint. Blackening and tattooing absent and inter-communicating with injury no.1.

(III)    Abrasion ½'' x ½'' on back of left eblow.
 
(IV)  Abrasion 2 ½'' x ½'' on back of left wrist joint.
 
(V)   Gun shot wound of entry ¼'' x 1/4'' 1 deep on right side ¼' lateral to mid line 11/2'' above the sacral promontry 2'' apart from each other. Blackening and tattooing absent. Direction from back to front.
 
(VI)  Gun shot wound of entry ¼'' x ¼'' x abdominal cavity deep on right side of back 21/2'' x lateral to injury no.5. Blackening and tattooing absent. Direction from back to front. 
 
(VII)  Gun shot wound of entry ¼'' x ¼'' x abdominal cavity deep on right side of back 61/2'' lateral to mid line 8'' above the iliac crest. Blackening and tattooing absent. Direction from back to front. 
 
(VIII)  Gun shot wound of entry ¼'' x ¼'' x chest cavity deep on right side of back 61/2'' x lateral to mid line 41/2'' above injury no.7. Blackening and tattooing absent and direction was from back to front.  
 
(IX)    Gun shot abrasion ¼'' x ½'' on radial side of right arm 4'' above the right elbow.
 
(X)      Gun shot wound of entry ¼ x ¼ x muscle deep  on radial side of right fore arm 5 above the elbow joint. Blackening and tattooing absent. 
 
(XI)   Gun shot wound of exit ½ x ¼ x muscle deep on lateral aspect of right fore arm 5 above the elbow joint inter communicated with injuries no. 10. Direction from radial to ulnar side.
 
(XII)    Abrasion ¼ x ¼ on right side of face ½ 
 
below the right eye.        
 
          According to the opinion of the doctor, who conducted the  autopsy, the cause of death was due to shock and hemorrhage, as a result of aforesaid ante-mortem injuries.
 

(16)During the course of examination, this witness had stated that dead body of the deceased was brought to the mortuary on 27.10.1984 at 8.00 A.M. and thereafter, dead body was handed over to him for post-mortem at 3.10 P.M. According to him, all the gun shot wounds were received by the deceased beyond a distance of 4 feet and the abrasions were caused by coming into contact with rough object. The death of the deceased could have been possible at 3.00 A.M. on 26.10.1984, but looking into the emptiness of the stomach of the deceased it was clear that before the death, the deceased had already gone to the latrine and thereafter, he did not take food. The gun shot wounds were caused by the rifle so also Tamancha.

(17)On behalf of the defence, it was not disputed that death of the deceased was homicidal. This witness was cross-examined by the defence side only to the limited extent that the occurrence did not take place at the time and place as alleged by the prosecution. Thus it can safely be held that the death of deceased Brahma Dutt @ Kallu was homicidal, but it is to be seen whether the fire arm injuries were caused at the time, place and date as alleged by the prosecution or not.

(18) As stated earlier, in the trial the prosecution rested its case on oral testimonies of 7 witnesses including that of 4 fact witnesses and 3 formal witnesses. Since PW-2, PW-3 and PW-4 are the witnesses of the same fact, therefore, it would be convenient for us to take stock of their testimonies cumulatively. Before looking into the evidence of these witnesses, it would be convenient to look into the evidence of PW-1, the father of the deceased. PW-1 in his examination-in-chief before the Court stated that:-

"Brahma Dutt @ Kallu the deceased was his son and was murdered about 11 months back, he was having licenced rifle, the licence of the said rifle was cancelled. The proceedings of the cancellation of licence were pending before the District Magistrate. On the date of occurrence, he had moved from the village at 8.00 A.M. and was going to Fatehpur. He was accompanied by Jagdish, Rameshwar and Vishwanath. This witness further stated that his son-in-law had come to his house on the date, hence he was at home and he was taking care of his son-in-law. He was coming to Sheopur bus stand to get his son-in-law boarded on the bus. At about 9.00 A.M. they reached at the turning of Sheopur where he met Vishwanasth, Jagdish and Rameshwar, who told him that his son Brahma Dutt @ Kallu was murdered by Assan, Tassan, Wassan, Udai Bhan Jhalla Yadav and Abbas near the bridge of canal which is situated on Kishanpur Khaga Road. He immediately reached the place of occurrence along with his son-in-law and found the dead body of his son lying and also found the gathering of public. There were injuries on the body of his son. Jagdish, Rameshwar and Vishwanath were present with him. He got the report written by his son-in-law and thereafter he had gone to Kishanpur police station in a taxi and lodged the report. His son deposed against Tassan etc. in a case of docoity, for which they developed animosity with his son. His son was fighting a case under Section 107 Cr. P.C. and also fighting civil litigation against Tassan and others".

(19)Being cross-examined by the learned counsel for the defence, he has stated that his statement under Section 161 Cr. P.C. was recorded by the police. He has not seen in his own eyes, while his son was murdered, whatsoever was narrated by Jagdish and others, he got the same reduced into writing. While the written report was prepared, the witnesses Jagdish, Rameshwar and Vishwanath were also present. He denied to the suggestion that the report was written at the police station after deliberations and consultations with the police. He further stated that to get the report written, it took about one hour, thereafter for half an hour he was waiting for the taxi and thereafter, it took another half an hour to reach the police station. It was also stated that his son had left his house without taking the food. He handed over the written report to Chief Sahab first. He had gone to the police station alone and remained there for half an hour, thereafter he along with the police officer came to the place of occurrence in the Jeep. All the three witnesses were remained at the place of the occurrence. The police officer also remained at the place of the occurrence for about two hours and after one hour police officer dispatched the dead body. He was interrogated by the police at the place of occurrence, so also his other witnesses. Thus, this witnesses had not witnessed the occurrence and at the instance of other three witnesses he had lodged the written report.

(20) Vishwanath (PW-2) deposed that Brahma Dutt @ Kallu was murdered in front of him. On the date of incident he alongwith Brahma Dutt @ Kallu, Jagdish and Rameshwar Prasad had left for Fatehpur from the house of Brahma Dutt @ Kallu, with respect to the proceedings of cancellation of the rifle licence of Brahma Dutt @ Kallu. They left the house at about 8-8.15 A.M. and had gone to village Nihalpur to take advise of one Vishal whose licence was cancelled earlier. However, Vishal was not there at home, from village Nihalpur, they came to Khaga-Kishanpur road and reached near the bridge of the canal. Towards east of the road and to the north of the said bridge, Assan, Tassan, Wassan, Abbas, Udai Bhan and Jhalla Yadav were sitting under the mango tree. Assan was having D.B.B.L. gun, Abbas, Jhalla Yadav and Wassan were having S.B.B.L. guns, and Tassan was having lathi in his hand. When they reached about 7-8 paces before the bridge and was waiting for bus, Wassan suddenly started firing at them, which hit Brama Dutt @ Kallu and he fell down then and there. In the meantime both Tassan and Jalla Yadav exhorted saying that " Maaro Salon Ko Bhagney Na paye" and all the accused started firing recklessly and ran towards them.

Due to firing and in order to save their life, they ran towards southern side of the bridge reached to the west of the road and hid themselves in a ditch in the southern side, from where they saw that Udai Bhan was having Tamancha in his hands and also saw that Tassan had taken away the rifle along with belt of the cartridges and also gun licence from the possession of deceased Brahma Dutt @ Kallu. The witness Rameshwar Prasad had also fired at the accused in defence, with his S.B.B.L. gun to which the accused left the deceased and ran towards north. The occurrence took place at about 9.30 A.M.

(21) Being cross-examined by the defence counsel, he stated that on the date of occurrence he was going to Fatehpur along with the deceased, but he was not having any personal work. They were going to Fatehpur to attend the date for cancellation of rifle licence of the deceased. He further stated that mango tree was situated at a distance of 5 to 6 paces from the patri of the road. When they crossed the accused and gone ahead of 28-30 paces towards south, then the accused started firing. At that time, all these witnesses were standing at one place. Brahma Dutt @ Kallu received injuries and fell down, due to fear they all had run away. He was not having any weapon in his hands, he ran towards south for about 30-35 paces and Jumped into the ditch situated on the west of the road and remained there. The accused came running towards the dead body by exhorting and firing at the witnesses. He came out from the ditch, after the accused left the place of occurrence and came up to Sheopur turning where he met the father of Brahma Dutt @ Kallu. He had seen 7-8 rounds of firing. On the date of occurrence, there was "Yamdutiya Mela" at Kishanpur and public used to pass through the road where the occurrence took place, but on that date there was no public, only some ladies were found passing through the road. He did not witness any public passing through the road at the time of occurrence. He denied to the suggestion that occurrence took place during the late night hours and he was not present at the place of occurrence.

(22) PW-3 Jagdish Prasad deposed that "on the date of occurrence he along with Vishwanath, Brahma Dutt @ Kallu and Rameshwar had left for Fatehpur at 8 A.M. in connection with the cancellation proceedings of licence of Brahma Dutt @ Kallu. They reached southern side of road of Khaga-Kishanpur, they saw that, towards the east of the northern side pulia, the accused Tassan, Assan, Wassan, Jhalla Yadav, Abbas and Udaibhan were found under the mango tree with S.B.B.L. and D.B.B.L. guns and lathi in their hands. They crossed the accused for about 27-28 paces and were waiting for the bus. Then suddenly Wassan fired at them, which hit Brahma Dutt @ Kallu and he fell down. Tassan and Jhalla Yadav exhorted and all the accused started firing and proceeded towards them. They ran towards south and to the west of the southern side road of the pulia, they sat on the open ground under the mango tree. From there, they saw that all the accused came to Brahma Dutta @ Kallu and then Tassan taken away the rifle and chain of cartridges. Rameshwar also fired at the accused with his S.B.B.L. gun to which the accused ran away from there towards north. The occurrence took place at 9.30 A.M.

He stated in his cross-examination that the father of the deceased got the report written by his relative Chandra Bhushan and to get the report written, he along with the said relative left for Kishanpur police station in a taxi. He categorically stated about the criminal cases pending between him and the accused, so also the election fought by him and accused Tassan. He further deposed that all the three witnesses were sitting in the same ditch. However, he denied to the suggestion that he was deposing falsehood due to party bandi and enmity and that he had not seen the occurrence.

PW-4 Rameshwar Prasad almost deposed in the same verbatim, as deposed by PW-2 and PW-3, in his examination-in-chief. During his cross-examination this witness stated that, he had identified the accused from a distance of 10 meters. He ran towards South and crossed the bridge and sat in a ditch. He further stated that Brahma Dutt @ Kallu was having rifle in his hands and he fell on the ground along with the rifle, facing his face upwards. On the date of occurrence, it was the last date for cancellation of gun license of Brahma Dutt @ Kallu, for which Brahma Dutt @ Kallu was supposed to deposit the firearm. He denied to the suggestion that he has not seen the occurrence and due to enmity he deposed falsehood.

(23) Thus after careful scrutiny of the aforesaid three witnesses, we found that testimonies of aforesaid three witnesses are absolutely in contradiction with each other and their presence is doubtful at the place of occurrence. From perusal of their testimonies, it is crystal clear that all these witnesses were planted to suit the case of prosecution, as they have categorically deposed about their enmity with all or either of the accused and hence looking into the animosity of these witnesses and the deceased with the accused, the possibility of false implication of the accused cannot be ruled out and no reliance can be placed on their testimonies.

(24) According to the learned counsel for the appellants, the FIR was ante timed. The case of the prosecution is that the occurrence took place at 9.30 A.M. and the FIR was lodged at 10.34 A.M. It has come in the evidence of PW-7 that the distance between the place of occurrence and the police station is 9 km. The inquest was held by the Investigating Officer (PW-7) between 11.30 to 1.30 p.m. on the spot itself. PW-7 S.I. Sri V.P. Upadhaya deposed before the Court that he reached the place of occurrence at 11.30 A.M., prepared the panchayatnama and also prepared the other papers for dispatching the dead body to conduct post-mortem examination, and dead body was dispatched through constables Sri Chandrama Tiwari and Indrasen Singh for post mortem. During his cross-examination, he categorically stated that he dispatched the dead body along with relevant papers through constables at 1.30 P.M., however, it was not known to him how they had taken the dead body. In this regard PW-6 Dr. S.K. Singh categorically deposed that dead body reached the mortuary on 27.10.1984 at 8.00 A.M. and thereafter, it was handed over to him at 3.10 P.M. for post-mortem examination.

(25) We do not find any endorsement on record as to when the dead body was received at Reserve Police Lines. In order to substantiate such delay of about 20 hours for placing the dead body in the mortuary, none of the constables to whom the dead body was handed over, were produced before the court by the prosecution for their examination. In other words there is no plausible explanation from the prosecution as to where the dead body was kept from the time it was handed over to the constables, till the same was placed in the mortuary on the next day morning. Apart from the above lacuna, a perusal of the inquest report, it further reveals that the Case Crime No.134 of 1984 under section 396 I.P.C., P.S. Kishanpur, District-Fatehpur was mentioned in the report and other related papers but the names of accused were not mentioned in the same. There was no explanation from the side of the prosecution as to how and when the section 396 I.P.C. was converted into Sections 147, 148, 149, 302, 404 I.P.C. There was also no mention about the dispatch of the special report to the magistrate. With regard to the lodging of FIR, the testimony of PW-1 does not inspire confidence. He stated that he reached the turning of Sheopur at 9.00 A.M. where he met Vishwanath, Jagdish and Rameshwar, who narrated about the incident, thereafter he along with them went to the place of occurrence, stayed there for about some time, he got the report written on the place of occurrence itself by his son-in-law Sheo Bhushan which took about one hour to get the report scribed, thereafter, he waited for taxi for about 30 minutes and it took another half an hour to reach Kishanpur police station where he lodged the report. However, during his cross examination he stated that first he had gone to his house and thereafter he reached the police station, he met one Chief Sahab to whom he had handed over the report and then he met the police officer, the Chief Sahab took his thumb impression. He alone had gone to the police station, stayed in the police station for half an hour and from the police station he came to the place of occurrence in a police jeep. The police officer stayed there for about 1-2 hours, after one hour, the police dispatched the dead body. In this regard PW-7 categorically stated that he reached the place of occurrence within 45 minutes on the cycle. The police station situated at a distance of 9 km from the place of occurrence. It was not known to him when the special report was sent because he left for the place of occurrence immediately along with informant on his cycle. In this regard PW-2, PW-3 and PW-4 categorically stated that the occurrence took place at 9.30 A.M. and PW-1 left for the police station in a taxi. Thus, a perusal of testimony of the aforesaid witnesses, it is crystal clear that FIR was not lodged at the time which was mentioned in the written report (Ext. Ka-1), rather it seems that after completion of the inquest proceedings, with deliberations and consultations at the behest of the police and the witnesses, the FIR was lodged, falsely implicating the accused-appellants because there was animosity of the witnesses with all accused due to previous litigations. Non presence of the three witnesses (PW-2, 3 and 4) at the place of occurrence, during the time of crime or at the time of inquest further strengthens due to the reason that none of the three witnesses were shown in the inquest report as witnesses to the panchayatnama. It also further belies the prosecution version because, Shiv Bhushan, the son-in-law of PW-1 was scribe of the written report. But he was neither shown to have accompanied PW-1 to the police station for lodging the report, nor he was shown to be one of the Panch witnesses during the inquest proceedings, which shows that, neither the FIR was in existence at the time of panchnama, nor the inquest was held at the time and place as alleged by the prosecution. Obviously it is apparent on the face of the record that the FIR came into existence at the later time and date and for the reasons stated above, we find force in the arguments advanced by the learned Senior Counsel that the FIR was anti-timed.

(26) The case of prosecution is that on 26.10.1984 date was fixed regarding cancellation of fire arm licnece of the deceased. In this regard the accused appellants have examined DW-1 Chandra Bhushan Singh who was an Arms clerk in the office of the District Magistrate, Fatehpur. He categorically deposed before the Court that the licence of the fire arm pertaining to the deceased was already suspended on 19.09.1984 and show cause notice was issued to the deceased to file his written statement within a period of 15 days. Thereafter, the deceased had filed his objection to the show cause notice on 12.10.1984 itself. According to this witnesses, no date whatsoever was fixed for filing written statement rather no proceeding whatsoever was pending on 26.10.1984. A perusal of the evidence of this witness and after going through the testimony of all the three prosecution witnesses PW-2, PW-3 and PW-4, it is crystal clear that as there was no date fixed for attending the office of the District Magistrate hence, assembling of all the three witnesses at the house of the deceased, going to the house of Vishal for verification and thereafter, reaching the place of occurrence and waiting for the bus to go to Fetehpur and witnessing the entire occurrence, the entire story was cooked up and fabricated to give colour to the prosecution version. PW-7 categorically stated that he did not make any effort to find out as to whether any date was fixed for attending the office of the District Magistrate on 26.10.1984, which further strengthens that the prosecution has come up with a cooked up story to falsely rope in the accused-appellants.

(27) Regarding injuries found on the body of the deceased, all the prosecution witnesses have stated that accused-appellant Wassan fired at them when they were waiting on the road to get a bus for Fatehpur, which hit the deceased Brahma Dutt @ Kallu, he fell down and died instantaneously. All the witnesses further stated that thereafter, the other two accused Tassan and Jhalla Yadav exhorted and all the accused-appellants made reckless firing at them, however, none of them had received fire arm injuries. All the witnesses have also deposed that all the accused have made about 7-8 rounds of firing at them. It is worthwhile to note that Investigating Officer reached the place of occurrence within two hours, all the eye witnesses were present there, but he could not recover even a single empty cartridge from the place of occurrence. It is further to note that PW-6, who conducted the post-mortem examination, found as many as 12 ante-mortem injuries on the body of the deceased and out of those 12 injuries, six injuries are the gun shot entry wounds and two injuries are the gun shot exist wounds and 4 injuries are the abrasions. There was no plausible explanation on the side of the prosecution as to how other gun shot injuries were found on the body of the deceased when he had fallen on the ground after receiving one gun shot injury and died immediately. It is also worthwhile to mention here that the injuries were received by the deceased on his back side. The law of motion clearly shows that after receiving gun shot injuries, a person fall in the opposite direction generally. In this case as many as three wounds of entries were found on the back side of the deceased then he was supposed to fall on face-ward. But PW-7 who conducted inquest proceedings categorically mentioned in the inquest report that the body of the deceased was lying on the ground facing his face towards the sky (Chith Awastha). PW-4 Rameshwar Prasad also categorically stated that the deceased was lying on the ground facing his face upwards, which is contrary to the evidence of the other eye witnesses. Thus the medical evidence vis-a-vis the ocular evidence are contradictory to each other, and it is apparent that incident did not occur in the manner as alleged by the prosecution, rather none of the alleged eye witnesses were present at the place, when the occurrence had taken place. The time of occurrence also belies the prosecution case, because the same contradicts with the medical evidence. PW-6 during post-mortem examination found that the stomach was empty, and it was possible that, the deceased could have died at 3.00 A.M. on 26.10.1984, he had already gone for latrine and thereafter he did not take food.

(28) In view of the above observations, we conclude that in the present case the witnesses have categorically deposed about the motive, hence, the false implication of the accused-appellants cannot be ruled out. The testimonies of the so called eye witnesses are untrustworthy and their version does not inspire confidence. The spot map (Ext.Ka-13) prepared by the Investigating Officer (PW-7) does not corroborate with the oral evidences of the so called eye witnesses. The witnesses stated to have taken shelter in the ditches on the western side road, situated southern side of the bridge. According to them, all these witnesses were remained present during the time of preparation of spot map. But no ditches what-soever, were shown in the spot map, which also falsifies the prosecution story and the presence of these witnesses. There were material discrepancies and contradictions in the testimonies of all the witnesses which proves that these witnesses were not present at the place of occurrence as deposed by them. The FIR was ante-timed. The medical evidence does not corroborate with the testimonies of so called eye witnesses. No plausible explanation was put forth by the prosecution as to where the dead body was lying from the time it was dispatched for post post-mortem till it reached the mortuary.

(29) The learned trial judge without considering the aforesaid material discrepancies, has fully placed reliance on the so called ocular version and recorded his findings, which are factually incorrect, and thus the findings suffer from legal infirmities. The arguments advanced by the learned Senior counsel for the appellants in support of the appeal are well founded and fully substantiated from the evidence available on record and accordingly, we hold that the prosecution has failed to prove the charges against the appellants beyond the shadow of reasonable doubt, hence the appellants are entitled for acquittal.

(30) In the result, appeal is allowed. The judgment and order dated 30.08.1986 passed by the learned Additional Sessions Judge, Fatehpur in S.T. No. 20 of 1985 (State Versus Tassan and others), pertaining to P.S. Kishanpur, District-Fatehpur, convicting and sentencing the appellants namely, Wassan (A-2), Abbas (A-3), Udai Bhan (A-4) and Jhalla Yadav (A-5) under section 148 I.P.C and convicting and sentencing the appellant-Wassan to life imprisonment under Section 302 I.P.C., convicting and sentencing the appellants Tassan, Abbas, Udaibhan and Jhalla Yadav to life imprisonment under Section 302 read with section 149 I.P.C. are hereby set aside. The accused-appellants are acquitted from all the charges levelled against them. The appellants are on bail, their bail bonds are cancelled and sureties are discharged. They need not surrender before the Court, however, the appellants are directed to comply with the provisions of Section 437-A Cr. P.C.

(31)    The office is directed to communicate this order to the court concerned for necessary compliance.
 
Order Date:- 3.5.2019 
 
T.S.